On Tuesday, May 28, 2013, the Common Council of the City of Buffalo followed the lead of New York City, Newark, and Philadelphia, when it passed its own “ban the box” ordinance by a vote of 7-2. The ordinance, which amends Chapter 154 of the Code of the City of Buffalo, and which passed by enough votes to override any potential veto by Mayor Byron W. Brown, prevents the City of Buffalo, its vendors, and any Buffalo employer with at least 15 employees from asking questions regarding or pertaining to an applicant’s prior criminal convictions on any employment application.

Exempt from the law are the Departments of Police and Fire (or any other employer hiring for “police officer” and “peace officer” positions), public and private schools, and providers of direct services specific to the care or supervision of children, young adults, senior citizens, or the physically or mentally handicapped. In addition, employers hiring for licensed trades or professions may ask applicants the same questions asked by the trade or professional licensing body, and employers are not constrained from asking questions about convictions or violations where the same would serve as a bar to employment in that position under New York or Federal law.

Employers who violate the new ordinance may find themselves liable in a civil action or proceeding for damages, injunctive relief and reasonable attorneys’ fees. Additionally, individuals may pursue relief by filing an administrative complaint with the Commission on Citizens’ Rights and Community Relations. In the event of a probable cause finding by the Commission’s Director, an action may be filed in court against the employer seeking a penalty of $500 for the first violation and/or $1,000 for each subsequent violation.

It should be noted that under the new ordinance, employers may still ask questions about and consider candidates’ prior criminal convictions during an initial interview that takes place after the application is submitted. However, employers that comply with the new Buffalo ordinance are still subject to the controversial Equal Employment Opportunity Commission regulations on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as well as the more stringent parameters of New York law. Specifically, New York Correction Law Article 23-A (encompassing §§ 750-755) and New York Executive Law § 296(15) make it unlawful to discriminate against an individual previously convicted of a criminal offense or by reason of a finding of lack of “good moral character” when such finding is based upon the fact that the individual has previously been convicted of one or more criminal offenses, unless:

1. there is a direct relationship between one or more of the previous criminal offenses and the specific employment sought or held; or
2. the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

When making a determination as to whether the “direct relationship” or “unreasonable risk” exception applies, New York employers must consider the following eight factors

1. The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses;
2. The specific duties and responsibilities necessarily related to the license or employment sought or held by the person;
3. The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities;
4. The time which has elapsed since the occurrence of the criminal offense or offenses;
5. The age of the person at the time of occurrence of the criminal offense or offenses;
6. The seriousness of the offense or offenses;
7. Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct; and
8. The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.

New York employers should keep in mind that undertaking this analysis is mandatory, a concept reinforced by the New York Court of Appeals in 2011 in Matter of Acosta v New York City Dept. of Educ., 16 N.Y.3d 309 (N.Y. 2011). This means that New York employers can run afoul of the law simply by failing to consider the eight factors listed above, regardless of whether the decision to not hire or rescind an offer of employment makes complete “business sense.”

With the passage of this ordinance, Buffalo continues the trend of some 50 other cities and counties that have similarly decided to “ban the box.” Additionally, some states like California, Illinois, and Massachusetts have passed state-wide “ban the box” legislation, with new bills (some of which are far more aggressive than the Buffalo ordinance) being introduced on a seemingly regular basis. For example, the “ban the box” bill recently introduced in the New Jersey Senate would prohibit private and public New Jersey employers from directly or indirectly inquiring about a candidate’s criminal history until after a “conditional offer of employment” has been made, and would impose additional procedural and administrative burdens which appear to be more significant than those required under the federal Fair Credit Reporting Act.

For more information on how this will impact your business, please contact:

• Sean P. Beiter (716.566.5409; sbeiter@goldbergsegalla.com)
• Caroline J. Berdzik (609.986.1314; cberdzik@goldbergsegalla.com)
• Matthew C. Van Vessem (716.566.5476; mvanvessem@goldbergsegalla.com)
• Or another member of the Goldberg Segalla Labor and Employment Practice Group